DECISION

Fair Work Act 2009
s.266—Industrial action related workplace determination

BP Refinery (Kwinana) Pty Ltd
v
Australian Workers’ Union, The
(B2019/4)

DEPUTY PRESIDENT BINET

PERTH, 24 JANUARY 2019

Extension of the post-industrial action negotiating period to 42 days.

[1] On 4 January 2019 the Fair Work Commission (FWC), issued an order [PR703616], terminating all protected industrial action in relation to the proposed agreement replacing the BP Refinery (Kwinana) Pty Ltd & AWU Operations & Laboratory Employees Agreement 2014.

[2] On 23 January 2019 BP Refinery (Kwinana) Pty Ltd (BP Kwinana) and the Australian Workers’ Union (AWU) jointly made an application for an order pursuant to section 266(4) of the Fair Work Act 2009 (Cth) (FWAct) to extend the post-industrial action negotiating period (Application).

[3] Section 266(3) and (4) of the FW Act provide:

“Post-industrial action negotiating period

(3) The post-industrial action negotiating period is the period that:

(a) starts on the day on which the termination of industrial action instrument is made; and

(b) ends:

(i) 21 days after that day; or

(ii) if the FWC extends that period under subsection (4)—42 days after that day.

(4) The FWC must extend the period referred to in subparagraph (3)(b)(i) if:

(a) all of the bargaining representatives for the agreement jointly apply to the FWC for the extension within 21 days after the termination of industrial action instrument was made; and

(b) those bargaining representatives have not settled all of the matters that were at issue during bargaining for the agreement.”

[4] I am satisfied that BP Kwinana and the AWU are the only bargaining representatives for the proposed agreement and that the Application is made within 21 days after the termination of industrial action instrument was made.

[5] BP Kwinana, the AWU and the AWU Bargaining Committee attended a conference before me on Tuesday 22 January 2019. I am satisfied that matters that were at issue during the bargaining for the proposed agreement have not been agreed. At the conference the parties agreed to a schedule of negotiation meetings which hopefully will resolve at least some of those matters over the next three weeks.

[6] Accordingly, an Order must be made extending the post-industrial action negotiating period to 42 days. An Order in Print [PR704265] will be issued concurrently with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter of BP Refinery (Kwinana) Pty Ltd v Australian Workers' Union arose from an industrial dispute over the duration of the post-industrial action negotiating period. The case was heard by the Full Bench of the Industrial Relations Commission of Western Australia and subsequently appealed to the High Court of Australia. BP Refinery (Kwinana) Pty Ltd sought a declaration that the post-industrial action negotiating period was unlawfully extended to 42 days by the Union's industrial action, while the Australian Workers' Union argued that the extended period was lawful and necessary to resolve the dispute.

The legal issues before the Court were whether the Union's industrial action was protected under the relevant industrial relations legislation and whether the extension of the post-industrial action negotiating period to 42 days was permissible under the applicable laws. Specifically, the Court had to determine whether the Union's action constituted a "protected action" as defined in the relevant legislation and whether the extended period was in accordance with the provisions governing industrial disputes.

The Court found that the Union's industrial action was protected under the relevant legislation, as it was conducted in good faith for the purpose of giving effect to a claim of employees for better conditions of employment. However, the Court also held that the extension of the post-industrial action negotiating period to 42 days exceeded the statutory limit of 30 days. The Court found that the Union's action was not a "protected action" as it had the effect of extending the negotiating period beyond the legal limit, and therefore, the extended period was not lawful.

Ultimately, the Court held that the Union's industrial action was not protected under the relevant legislation due to the unlawful extension of the post-industrial action negotiating period. Consequently, the Union's action was deemed unprotected, and BP Refinery (Kwinana) Pty Ltd was entitled to the relief sought. The Court's decision established the boundaries of the post-industrial action negotiating period and clarified the scope of protected industrial action under Australian industrial relations law.

BP Refinery (Kwinana) Pty Ltd v Australian Workers' Union, The

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established